Challenge of FCC's Indecency Powers May Head to Supreme Court

WASHINGTON – A federal appeals court in New York will hear arguments Wednesday over whether the government's position on what constitutes indecent speech violates the First Amendment rights of broadcasters.

Lawyers and constitutional experts say the case stands a chance of eventually making it to the U.S. Supreme Court, the first time that a broadcast indecency dispute has gone that far in nearly three decades.

Broadcasters will argue that the Federal Communications Commission has instituted a new, inconsistent and unconstitutional enforcement regime for how it decides whether profanities uttered on broadcast stations are permissible.

The FCC will argue that it has acted within its statutory authority, and that existing community standards for broadcasting "simply do not permit entertainers gratuitously to utter the F-word and the S-word" in awards shows broadcast when children might be watching.

Last April, FOX Television Stations Inc., CBS Broadcasting Inc. and others asked the appeals court to invalidate the FCC's conclusion that profanity-laced broadcasts on four different shows were indecent, even though no fines were issued.

The FCC asked the court for a chance to re-examine its ruling, and dropped its claim against episodes of the ABC police drama "NYPD Blue" on technical grounds as well as its determination that a broadcast of CBS' "Early Show" was indecent because it was considered "news programming."

But the agency held its ground on two awards shows, both broadcast on FOX:

--A Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase, "F--- 'em."

--A Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said: "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

The root of the controversy can be traced to a January 2003 broadcast of the Golden Globes awards show by NBC where U2 lead singer Bono uttered the phrase "f------ brilliant."

In the Bono case, the agency's enforcement bureau said because the singer was not describing "sexual or excretory organs or activities" but was using the word as an "adjective or expletive to emphasize an exclamation" that it was not indecent.

But in March 2004, the agency reversed course, saying the "F-word" in any context "inherently has a sexual connotation."

NBC, joined by the other major broadcasters, asked the FCC to reconsider the Golden Globes ruling, but the agency has not acted on the petition in more than two years.

In the interim, the FCC issued its decision on the shows that are now at the center of the current case.

David Solomon, now a private attorney, was chief of the FCC's enforcement bureau from November 1999 to May 2005, and oversaw the indecency cases at issue.

He said this case is "very important," and agrees with broadcasters that the agency has expanded its power. "I think there's a significant likelihood that the FCC will lose."

If the government loses its case, the appeals court will likely remand the dispute to the agency and ask it to rewrite its rules. If the government wins, it gives "court approval for the significant expansion of their approach to indecency enforcement," Solomon said.

A loss by the broadcasters would almost certainly result in an appeal to the Supreme Court. For the government, a loss might mean an eventual appeal, but it would be a longer road to get there.

Arguments are scheduled for Wednesday morning and are expected last about an hour.

FOX Television is owned by News Corp., which is the parent company of FOXNews.com.